1 Definitions and Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
In these conditions we or us means the Seller; you means the person or company who purchases the Goods and/or Services from us, and our and your shall be construed accordingly.
Confirmation means our acceptance of an Order in writing, specifying and incorporating and attaching these conditions,
Contract means the Order and our acceptance of the Order, either in writing by the issue of a Confirmation or as otherwise provided in accordance with, and incorporating, these conditions,
Fees means the amount payable for the Goods as specified in the Order,
Goods means any goods agreed in the Contract to be bought by you from us (including any part or parts of them), as specified in the Order,
Order means your written offer to us to buy Goods and/or Services,
Seller means Sumo Power or the member of its Group specified in the Contract for the sale of the relevant Goods and/or Services,
Services means any services agreed in the Contract to be supplied by us to you, as specified in the Order,
Site means the Sumo Power at Unit 1, Faraday Business Park, Littleport, Cambridgeshire, CB6 1PE, UK
1.2 A reference to a law or other statutory instrument is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2 Application of Terms
2.1 Subject to any variation under condition 2.3, these conditions are the only conditions upon which we will deal with you and they shall govern the Contract to the entire exclusion of all other terms or conditions including without limitation any terms endorsed upon, delivered with or contained in our quotation, acknowledgement or acceptance of order, specification or similar document.
2.2 An Order for Goods and/or Services by you from us shall be deemed to be an offer by you to buy Goods and/or Services subject to these conditions and no Order shall be accepted until we either expressly, by giving notice of acceptance, or impliedly, by fulfilling the Order in whole or in part, accept the offer.
2.3 You are deemed to have accepted these conditions as part of the Contract when you make any such offer (by way of Order) and these conditions shall apply to the Contract.
2.4 You acknowledge that you have not relied on any statement or representation made or given on our behalf. Any estimate of quantities required or advice as to the suitability of Goods or Services for any particular purpose (whether expressly notified to us or otherwise) is for guidance only and without any liability on our part. You must satisfy yourself that any Goods and/or Services ordered are correct and required by you.
2.5 These conditions apply to all your purchases and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by both parties.
2.6 Any typographical error or omission in any sales literature, quotation, price list or any other document or representation made by us may be corrected without any liability on our part and we are under no obligation to accept and/or fulfil any Order which includes or relies upon any such error or omission.
2.7 Your rights under these conditions are in addition to your statutory rights that may be implied in your favour including, without limitation, by the Sale of Goods Act 1979, and we confirm that your statutory rights are not affected by these conditions.
3 Quality and Description of Goods
3.1 The quantity and description of the Goods and/or Services to be supplied by us are set out in our quotation or Confirmation.
3.2 All samples, drawings, photographs, descriptions or other descriptive matter, specifications and advertising are issued or otherwise provided for the sole purpose of giving you an approximate idea of the nature of the Goods and/or Services. They shall not form part of the terms of the Contract and any sale of Goods or Services shall not be a sale by sample.
3.3 Where fine, special or unusual tolerances or qualities are required in the Goods and/or Services supplied beyond those generally accepted, no liability whatsoever shall attach to us for failure of the Goods and/or Services to meet such requirements unless both
3.3.1 such requirements are notified to us in writing at the time of the Order
3.3.2 we have acknowledged in writing that we are prepared to accept
(a) the entire Order; and
(b) provide the Goods and/or Services with those tolerances or qualities.
3.4 Unless we have undertaken to provide Goods and/or Services requiring special tolerances pursuant to condition 3.3 above, we make no warranty or representation as to the quality of any Goods or Services or their fitness for any purpose, whether such purpose has been notified to us or not, and any terms implied by the Sale of Goods Act 1979 in this regard are hereby excluded to the extent permitted by law.
3.5 It shall at all times be your responsibility to ensure that any Goods and/or Services ordered by you and supplied by us are fit and suitable for their intended use and we shall bear no responsibility for any loss or damage caused by the misuse of such Goods and/or Services by you or your failure to use them in accordance with any instructions provided by us or the manufacturer of them.
3.6 Goods and/or Services are supplied by us only to correspond to the purpose for which goods and/or services of that kind are commonly supplied and not for any alternative uses to which they may be put. Certain Goods we sell are intended for use in or with certain types of vehicles only and for certain purposes only. No liability for failure, loss or damage will be accepted by us in respect of any such alternative use, amendment or modification by you or anyone acting on your behalf, including in circumstances where we have not advised you of the vehicles and purposes for which those Goods are intended.
3.7 Whilst we make every effort to ensure that Goods supplied by us to you are suitable for use in your vehicle, any such opinion will be based entirely upon information provided by you with no inspection undertaken by us. As such, all such information or opinion is for indicative purposes only and should be checked and confirmed by you prior to placing an Order. Due to the unpredictable nature of the stress placed on vehicles (whether performance/competition vehicles, road vehicles or vehicles or ay other nature), and our inability to monitor and inspect the installation, modification and use of any Goods supplied by us to you, we give no warranty (whether express or implied) in relation to the Goods, apart from:
3.7.1 any warranty contained in these conditions;
3.7.2 any warranty expressly confirmed in writing by us at the time of the relevant Confirmation; and
3.7.3 any warranty provided by the manufacturer of any Goods we sell to you (in which case your rights shall be against the manufacturer and we shall bear no responsibility or liability to you arising out of or in connection with any claim thereunder).
4.1 Unless otherwise agreed by us, delivery of the Goods shall take place at the Site. Delivery shall be deemed to occur when you take possession of the Goods at the Site or, if we have agreed to deliver them elsewhere, when the Goods are unloaded at the delivery address. Delivery of the Services shall be deemed to occur when the Services have been completed by us and, if you order more than one Service, each shall be deemed to be delivered when it has been completed whether or not the others have been completed.
4.2 Any dates and times we specify for delivery shall be an estimate and we shall not be liable to you if we do not deliver on any particular date or at any particular time. Time for delivery shall not be of the essence and may not be made of the essence by notice or otherwise.
4.3 If you fail to accept delivery of any Goods when they are provided for delivery at the delivery address (which may include the Site), or we are unable to deliver the Goods or provide the Services because you have not provided appropriate and full instructions, access, documents, licences, authorisations or consents:
4.3.1 we shall be entitled to immediate full payment of the Fees and risk in the Goods shall pass to you; and
4.3.2 we may store such Goods (or any portion of them) until delivery is accepted by you; and
4.3.3 you shall be liable for all reasonable costs and expenses arising from such non-delivery including but not limited to transport, storage and insurance costs.
4.4 If, in the relevant driver's opinion, there is no suitable means of access to the delivery address, delivery will be made to the nearest point at which, in the driver's opinion, the Goods can be safely and lawfully unloaded.
4.5 We shall be entitled to make a charge for delivery in addition to the Fees if delivery is to be made at a delivery address other than the Site, and such charge will be specified and payable at the same time and on the same terms as the Fees.
4.6 We may deliver the Goods and/or Services by separate instalments. Each instalment shall represent a separate Contract and cancellation or termination of one instalment (where permitted hereunder) shall not entitle you to cancel any other instalment. Where delivery is made in instalments, we shall be entitled to make a charge for delivery of each instalment separately in accordance with these conditions, and such charge will be specified and payable at the same time and on the same terms as the Fees for the relevant instalment are.
4.7 We shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Order number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
4.8 Unless otherwise agreed by us and confirmed in writing in the relevant Confirmation, deliveries shall only be made during normal business hours.
4.9 Packaging material shall only be returned to us at your cost and we may in any event and in our absolute discretion refuse delivery of the same with no liability.
4.10 We shall not be liable for any shortfall or omission in quantity or type of Goods and/or Services delivered to you unless you give us written notice of the same within two working days of delivery, specifying the Goods and/or Services that were omitted. In any event our liability shall be limited to making good the shortfall or (in our absolute discretion) issuing a credit note or refund at the pro rata Contract rate against any invoice raised for such Contract
5 Title and Risk
5.1 Risk in the Goods shall pass to you upon delivery, or deemed delivery in accordance with condition 4, and title to the Goods delivered to you shall pass on full receipt of the Fees (including any relevant delivery charges) for those Goods by us in cleared funds.
5.2 Ownership of the Goods shall not pass to you until we have received in full (in cash or cleared funds) all sums due to us in respect of:
5.2.1 the Goods; and
5.2.2 all other sums which are or which become due to us from you on any account.
5.3 Until ownership of the Goods has passed to you, you shall:
5.3.1 hold the Goods on a fiduciary basis as our bailee;
5.3.2 store the Goods (at no cost to us) separately from all other goods of you or any third party in such a way that they remain readily identifiable as our property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
5.3.4 maintain the Goods in satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction. On request you shall produce the policy of insurance to us.
5.4 You grant us, our agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them.
5.5 Where we are unable to determine whether any Goods are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
The price of the Goods and/or Services shall be confirmed in the Contract and shall be exclusive of VAT, which shall be payable by you at the rate applicable at the tax point. The relevant invoice may also include charges for packaging, loading, unloading, carriage and insurance as applicable.
7.1 Payment for the Goods and/or Services, together with any applicable delivery charges, shall become due at the time of Confirmation or, in our absolute discretion, at the time of delivery or deemed delivery.
7.2 Time for payment shall be of the essence. You shall pay all Fees and other applicable charges (including any VAT payable) in pounds sterling and in full without any deduction.
7.3 If you fail to pay any sum due then, without prejudice to the parties' other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, both before and after any judgment, at % per annum over the base rate from time to time or, at our option and where applicable, interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended and as in force from time to time), together with all costs and expenses incurred by us in recovering sums due or exercising our rights under this condition.
8.1 If any Goods and/or Services are defective due to defective workmanship or material, we shall (at our option) repair or replace such Goods (or the defective part) or rectify the defective Service or refund the Fees for such Goods and/or Services at the pro rata Contract rate, provided that:
8.1.1 you give us written notice of the defect within seven days of the date of delivery of the Goods or completion of the Services or, in the case of a defect which is not discoverable upon reasonable examination, within seven days of the time when you discover or ought to have discovered the defect (which shall, in any event, be within six months of the date of delivery of the Goods or completion of the Services);
8.1.2 we are given a reasonable opportunity after receiving such notice to examine such Goods and/or the completion of such Services and (if asked to do so by us), you return such Goods to the Site for the examination to take place there;
8.1.3 the defect is not due to wilful damage, negligence (other than ours), fair wear and tear, alteration or repair of such Goods without our prior written consent or otherwise than in accordance with any instructions provided by us at the time of the Contract or any manufacturer's instructions supplied with the Goods, incorrect storage, application, movement, installation, use or maintenance of the goods (other than by us); and
8.1.4 the defect is not due to any act or omission by you.
8.2 Our entire liability for defective Goods and Services is set out in condition 8.1 and we shall not be responsible for the cost of removing and transporting the Goods from any place they are fixed, installed or used (or for making good such place after removal) or for the cost of installing or fixing any repaired or replacement Goods, unless due to our defective service.
8.3 On request, we will provide information about any manufacturer's guarantee or warranty offered and available to you in respect of the Goods, unless such information has been supplied to you at the time of actual delivery. For the avoidance of doubt, we may supply Goods which are not supplied with any manufacturer's guarantee or warranty and, in such circumstances, we shall have no obligation to provide any guarantee or warranty, or any information regarding the same.
8.4 Save as expressly set out in these conditions, all warranties and other terms implied by statute and common law (save for terms implied as to title) are, to the fullest extent permitted by law, excluded from the Contract.
8.5 Our total liability in contract, tort (including, but not limited to, negligence), misrepresentation, or howsoever otherwise arising out of or in connection with the Contract shall be limited to the relevant Fees and any other charges that have been levied by us (including VAT and delivery charges).
8.6 Any Goods modified or adapted by you will not be covered by any warranty (whether pursuant to condition 3.7 or otherwise) and we shall not be liable for any loss or damage, howsoever incurred or arising, caused out of or in connection with such modification or adaptation. Any such Goods may not be returned in accordance with condition 11.
8.7 Under no circumstances shall we be liable to you for any expense, loss or damage incurred by you if you know (or ought to have known) at the time of placing the relevant Order that the Goods were not suitable for the intended purpose and you (or anyone authorised by you) subsequently use them for that purpose (whether or not the Goods have been modified by you).
8.8 We shall not be liable to you for any loss, damage or expense incurred by you arising out of or in connection with any Services (including, but not limited to, maintenance services) provided by us in circumstances where you have asked us to use or install:
8.8.1 any part(s) supplied or manufactured by any person other than us or any party recommended by us; or
8.8.2 any part(s) supplied by us that have since the date of delivery been modified, amended or damaged (whether due to wear and tear or otherwise) by you or anyone authorised by you in connection with those Services. Any liability shall in any event be limited as set out in these conditions.
8.9 We shall not be liable to you for any pure economic loss, loss of profit, loss of business, loss of goodwill or anticipated savings, whether direct, indirect or consequential, or any other indirect losses whatsoever, howsoever arising.
8.10 Nothing in these conditions excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, or any other matter which we are prohibited by law from excluding.
9 Health and Safety
Certain goods and services supplied by us could, if incorrectly, negligently or recklessly used, give rise to risks to health and safety of you or others. Information in respect of such goods and services is available from us and may be supplied at the time of delivery or on request by you. You undertake that you will comply and ensure compliance by your employees, agents and customers with any instructions or conditions provided by us or the manufacturer or supplier (whether included with the delivered Goods or provided separately) and will take all necessary steps and precautions, having regard to the nature of the Goods and/or Services, as are necessary to protect the health and safety of any person using, handling or disposing of them. You will indemnify us and keep us indemnified against all costs, claims, liabilities, charges or expenses arising from any breach by you of this condition.
You will be responsible for the disposal of any waste arising in connection with or out of the taking of delivery or use of the Goods and/or Services, and will comply with all applicable laws and regulations relating to such waste, save where you are a consumer and the responsibility for such disposal is imposed upon us by the operation of law. You will indemnify us and keep us indemnified against all costs, claims, liabilities, charges or expenses arising from any breach by you of this condition.
11 Cancellations and returns
11.1 We may, at our absolute discretion, accept the cancellation of any Contract or the return of any Goods not required by you. Any such cancellation or return shall be on such terms as we specify and, in any event, in accordance with these conditions and, in particular, we may charge you a reasonable handling fee for returning Goods to us.
11.2 Goods ordered by you may not be compatible with vehicles which have been modified, adapted or altered. Where we supply any Goods that are not compatible by reason of such modification, adaptation or alteration, we may (but shall not be obliged to), in our absolute discretion, accept a return of such Goods and, if we do so accept, will either issue a refund or credit to you in accordance with the terms of these conditions.
11.3 Where you are a "consumer" under a "distance contract" (as both defined in the Consumer Protection (Distance Selling) Regulations 2000) you may cancel a Contract within seven working days after the date of delivery of the relevant Goods. To exercise this right, you shall return the Goods to such location as we may specify in writing or, in the absence of any such specification, to the Site, or alternatively you may request us to collect the Goods at your expense. This term shall not apply to any Goods specially obtained or made for you or which are liable to deteriorate or expire rapidly, or that have been damaged, altered or modified by you or otherwise adversely affected since the date of actual delivery to you.
11.4 We shall be entitled to terminate a Contract made with you, or defer the dates for payment and/or delivery of the relevant Goods and/or Services, if you fail to pay us any sum due pursuant to the Contract or any of the following events occur or, in our opinion, become likely to occur:
11.4.1 you have a bankruptcy order made against you or make any arrangement with your creditors;
11.4.2 you convene a meeting of your creditors or enter into liquidation or administration;
11.4.3 you have a receiver and/or manager, administrator or administrative receiver appointed over your undertakings or any part thereof;
11.4.4 a resolution is passed or a petition presented to court for your winding-up or for the granting of an administration order, or any proceedings are commenced relating to your insolvency (whether actual or threatened);
11.4.5 you are or become unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade;
11.4.6 any event similar or analogous to those listed above occurs;
11.4.7 you fail to observe and/or perform any of your obligations under the Contract or any other contract entered into between us and you; or
11.4.8 you encumber or in any way charge any of the Goods prior to payment of all Fees and other applicable charges.
11.5 The termination of a Contract, however arising, shall be without prejudice to the rights and duties of the parties accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
12 Our property
Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and any other data supplied by us to you shall be kept confidential by you and shall not be passed on to any third party or otherwise dealt with by you other than in accordance with our written instructions.
13 Force majeure
We may defer the date of delivery, cancel any Contract or reduce the volume or number of the Goods and/or Services ordered by you (without liability to you) if we are unable to deliver or supply the Goods and/or Services due to any cause beyond our reasonable control (including but not limited to any act or omission, or insolvency or threatened insolvency, of our suppliers and sub-contractors).
14.1 Any notice given or required to be given pursuant to the Contract shall be in writing and addressed to the relevant party at its principal place of business or last known address or delivered by hand to the relevant party. Any notice shall be deemed delivered at the time of delivery (if delivered by hand) or two working days after the date of posting (if posted) or on the next working day after dispatch (if sent by fax).
14.2 If any provision of the Contract or part thereof is found by any court or body of competent jurisdiction to be wholly or partly illegal, invalid, or unenforceable it shall, to the extent of such illegality, invalidity or unenforceability be deemed severable and the remaining provisions of the Contract and/or the remainder of such provision shall continue in full force and effect.
14.3 Each of our rights or remedies under any Contract is without prejudice to any other right or remedy of ours, whether under the Contract or not.
14.4 Failure or delay by us in enforcing or partially enforcing any provision of the Contract or any of these conditions shall not be construed as a waiver of any of our rights under the Contract or these conditions.
14.5 You shall not be entitled to assign or sub-contract the Contract or any part of it without our prior written consent.
14.6 We may assign or sub-contract any Contract with you or any part of it to any other person.
14.7 No amendment or variation of the terms of any Contract or these conditions, or waiver or release of any rights arising out of or in connection with any Contract, shall be effective unless it is made in writing and signed by or on behalf of both parties.
14.8 Save for any member of our Group, who shall be entitled to enforce the terms of any Contract in which it is named or otherwise identified as seller or supplier of the relevant Goods and/or Services, no term of any Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.9 Any dispute or claim arising out of or in connection with any Contract or these conditions shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.